Sen. Richard Durbin, D-Ill., and three other leading Democrats in Congress wrote in a letter to the White House on Tuesday that President Donald Trump’s Inauguration Day proclamation declaring that illegal immigration is an invasion of the U.S. is a “troubling and misguided interpretation of the Constitution,” which could be a precursor to legal action if Trump goes further.
The congressional Democrats who signed the letter — Sens. Durbin and Alex Padilla, along with Reps. Jamie Raskin and Pramila Jayapal — were joined in it by the American Civil Liberties Union and the Brennan Center, a liberal law and democracy think tank.
“Since you came into office, you have attempted to expand the scope of presidential power beyond that which is permitted by the United States Constitution and applicable federal laws. This proclamation is no different,” the letter said.
Trump has used the proclamation to effectively end access to asylum for immigrants crossing the border, both legally and illegally.
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Before he was inaugurated, several officials with his transition team suggested he would use a declaration that illegal immigration across the southern border is an invasion to trigger the Alien Enemies Act, which could allow him to target immigrants and use wartime powers to deport them without a hearing. He has not triggered the act thus far; doing so could lead to legal action from the groups behind this letter.
The White House did not immediately respond to a request for comment.
The members asked Trump to rescind the proclamation and work with Congress on immigration reform.
Last week, in his address to a joint session of Congress, Trump touted his accomplishments on the border, including an historic low in border crossings. The Trump administration has pushed for more money to continue deporting immigrants and policing the border but has made no push for new legislation on immigration.
The letter says that Trump’s declaring an alien invasion at the border misuses the term “invasion” as defined by the Constitution.
It also argues that the term “invasion” is used in Article IV of the Constitution to mean “an armed attack by a foreign power.” And it asserts that Trump is raising novel legal claims, meaning his theories have not been tested in court, by using “invasion” in reference to immigrants crossing the border and by claiming such an invasion “triggers unilateral presidential power over immigration, including the power to suspend or disregard laws that Congress has duly enacted.”
“These claims are not only legally and factually unfounded, they also threaten civil liberties and the constitutional separation of powers,” the letter says.
It adds, “as a legal matter, migration is not an ‘invasion.’ As courts have consistently held, an ‘invasion’ under the Constitution requires ‘armed hostility from another political entity, such as another state or foreign country that is intending to over through the government.’”
The ACLU has challenged the Trump administration’s asylum policy in federal court.
“Campaign rhetoric that immigrants seeking asylum are invading the country does not suffice as a legal matter. Under no legitimate constitutional theory are immigrants invading our country,” said Lee Gelernt, a lawyer with the ACLU who is the lead attorney on its challenge to Trump’s asylum policies.